Sentencing Tossed in Alien-Smuggling Tragedy

(CN) – For the second time, the 9th Circuit rebuked a federal judge for handing down 10 consecutive life sentences to a man whose immigrant-smuggling drive turned fatal. The federal appeals court in San Francisco remains unconvinced that Mexican national Adan Pineda-Dovan acted with “malice aforethought” when he swerved to avoid road spikes set up by the U.S. Border Patrol, causing his Chevy Suburban, packed with 20 undocumented immigrants, to roll over. Ten of Pineda-Dovan’s passengers died in the 2006 crash near Yuma, Ariz. A jury convicted Pineda-Dovan, who was 21 at the time of the crash, of 10 counts of transportation of illegal aliens resulting in death. The U.S. District Court for the District of Arizona then sentenced Pineda-Dovan to 10 concurrent life sentences. Though 9th Circuit affirmed the conviction in 2010, it found that the trial court had improperly applied second-degree murder guidelines without deciding whether Pineda-Doval acted with malice. U.S. District Judge Stephen McNamee in Phoenix imposed the same sentences on remand about a year later, ruling that “‘everybody knows’ that overloaded vehicles are inherently dangerous, and that Pineda-Doval knew that taking evasive action was going to result in ‘extreme consequences to anyone involved should there be an accident.” Though divided on appeal this time, the same three-judge panel vacated the sentences on Monday, finding the record on Pineda-Doval’s alleged malice lacking. McNamee neglected to consider that Pineda-Doval had, during a previous chase, swerved to avoid a similar spike strip without causing an accident, according to the panel. “In light of the prior incident, there is no clear, direct, or weighty evidence in the record that Pineda-Doval was aware of a very high likelihood that the overloaded Suburban would roll over,” Judge Betty Fletcher wrote for the majority. Also, the Border Patrol agents themselves said that the incident was fairly routine, and that spike strips and the avoidance thereof had never before caused such a deadly accident. “The agents testified that they had participated in deploying spike strips many times,” Fletcher wrote. “The overwhelming majority of the vehicles that the agents had attempted to stop with spike strips were high-profile vans or SUVs carrying many passengers, like the overloaded Suburban driven by Pineda-Doval. The agents had observed vehicles stopped by spike strips, as well as vehicles that drove around them. But none of the agents had ever witnessed a vehicle roll as a consequence of either driving over or attempting to drive around a spike strip.” Pineda-Doval can testify at the next sentencing hearing, over which Judge McNamee will still preside, according to the ruling. “The district judge exhibited no personal bias against Pineda-Doval,” Fletcher wrote. Judge Susan Graber argued in dissent that the majority should have afforded the lower court greater deference. “The District Court did exactly what we directed,” she wrote. “In the particular context of this case, the majority’s conclusion that the district court clearly erred amounts to a belated determination that Pineda-Doval’s actions could not, as a matter of law, have constituted malice aforethought.”